Let’s Talk About It Tuesday: The Children Act

Posted 16 December, 2014 by April @ The Steadfast Reader in Reviews

Let’s Talk About It Tuesday: The Children ActThe Children Act by Ian McEwan
Published by Knopf Doubleday Publishing Group on September 9th 2014
Genres: Fiction, Legal, Literary, Psychological
Pages: 240
Goodreads
four-stars

Fiona Maye is a leading High Court judge who presides over cases in the family court. She is renowned for her fierce intelligence, exactitude, and sensitivity. But her professional success belies private sorrow and domestic strife. There is the lingering regret of her childlessness, and now her marriage of thirty years is in crisis.At the same time, she is called on to try an urgent case: Adam, a beautiful seventeen-year-old boy, is refusing for religious reasons the medical treatment that could save his life, and his devout parents echo his wishes. Time is running out. Should the secular court overrule sincerely expressed faith? In the course of reaching a decision, Fiona visits Adam in the hospital—an encounter that stirs long-buried feelings in her and powerful new emotions in the boy. Her judgment has momentous consequences for them both.

McEwan’s The Children Act is a fascinating novel with themes that sit at the intersection of law and freedom. Being an attorney I was most interested in what Fiona’s ruling would be on the case set forth in the book.

While McEwan’s novel is set in British courts, the set of facts that is brought forth in the novel is one that American courts have to grapple with all too often as well. Adam, a seventeen year old Jehovah’s Witness (born and bred) is diagnosed with a common form of leukemia. A simple blood transfusion is virtually all that is needed to save the boy’s life. Without it, he will surely die. Yet Adam, weeks from his eighteenth birthday, wants to refuse the transfusion. The issue? Can the law compel a minor (so close to the age of majority) to accept life saving medical treatment against his wishes and the wishes of his parents? 

Jehovah’s Witnesses and Christian Scientists have always fascinated me in a morbid way because of their refusal to accept modern medical treatment, even in dire situations where lives are at stake. In the U.S., courts have consistently held that a competent adult has the right to refuse life-saving medical treatment and the Supreme Court has upheld it several times as a liberty interest under the Due Process Clause.

However, as you may suspect, juvenile and family courts don’t deal with competent adults, they deal with minors. When dealing with decisions about a child’s well-being and the law in the U.S., courts nearly always use the ‘best interest of the child’ standard. So even though it’s well established that parents have a fundamental right to raise their children as they see fit, (Wisconsin v. Yoder, if you’re interested) it’s not a right that is absolute. In the seminal case Prince v. Massachusetts, Justice Rutledge wrote for the majority:

“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”

But with the ‘best interest of the child’ standard there are many factors that courts will consider and they vary greatly state to state. Currently (and historically) there are hundreds if not thousands of cases where the courts have overruled the parent’s aversion to treatment for young minor children. However, the older the child is, the more likely the court will give his or her opinion weight. What makes the case in The Children Act so very close is Adam’s age and at the crux of the situation is truly his maturity level.

There were two cases that I could find that dealt with similar situations. In both cases the court held that despite the fact that the minors were very close to the age of majority, it was also deemed necessary that the court evaluate the maturity of the children in considering their wishes. In the end the courts ruled that it was acceptable to provide life-saving blood transfusions over the objections of the 17 year old patients and their parents.

At the same time I ran across a case of a 12 year old who was considered a ‘mature minor’ by the hospital, the hospital’s ethics committee opted not to pursue a court order to force life-saving treatment on the child and she subsequently died.

Clearly, I find this to be a fascinating point of law. I’ve run on too long with my legal history and background here but I still want to talk about the actual book a bit. The half concerning Fiona’s rationale in reaching her ruling is extraordinary. McEwan’s prose brings through simple truths about the law with his usual eloquence.

“This court is a court of law, not of morals, and our task has been to find, and our duty is then to apply, the relevant principles of law to the situation before us – a situation which is unique.”

It is a truth known to those in the legal profession that too often the law is not about morality or justice, the law is about… the law.

The second half of the novel was disappointing. I didn’t particularly care about Fiona’s marital problems or strife and I found some of her actions at the end to be incongruous with the character that she displayed at the beginning.

Overall this is a fascinating novel, though I would have liked to see more on Adam’s case and less on Fiona’s personal life. Highly recommended to people interested in the place where law and religion intersect and general fans of McEwan. It’s not Atonement, but it’s still an excellent read.

Edit: I should add that Catherine at Gilmore Guide to Books has a most excellent review that doesn’t focus so heavily on the legal aspect here.

Any interest in this one Reader? What do you think if you’ve read it? How do you feel about the state of U.S. jurisprudence regarding forced treatment of children over the religious objections of the parents? 

 

April @ The Steadfast Reader

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